Monday, 1 Jun 2020

Did an Ethics Commission Leak Private Information to Cuomo?

The text messages arrived on a snowy January afternoon, a few hours after New York’s state ethics commission privately debated whether to investigate a disgraced former aide to Gov. Andrew M. Cuomo. They were from a high-ranking government lawyer, sent to one of the commission members.

Was the meeting over? the lawyer asked. He had a question.

The conversation that followed is now at the heart of a brewing ethics controversy in Albany, involving an alleged leak, cover-up and pressure on supposedly independent investigative bodies. According to Julie Garcia, the commissioner who received the text, the lawyer told her that her vote during the meeting might have been leaked to Mr. Cuomo — a possible misdemeanor.

But when the state inspector general’s office investigated the matter, the office, whose head is appointed by Mr. Cuomo, decided that there was no evidence of a leak — even though it never interviewed Mr. Cuomo, several commissioners, or Assembly Speaker Carl E. Heastie, whose lawyer called Ms. Garcia.

In the weeks since, the allegations, many of which were first reported by The Times Union of Albany, have placed Mr. Cuomo and Mr. Heastie under intense scrutiny. They have also reignited doubts about the independence of the ethics panel, known as the Joint Commission on Public Ethics, and the inspector general’s office.

Both bodies have been accused of weak oversight, and activists, lawmakers and even commission members themselves have called for their overhaul.

“I strongly urge the governor to conduct an in-depth review of the operation of both JCOPE generally and the inspector general, and to use this as a lessons learned exercise,” said Gary Lavine, one of the two commissioners who told The New York Times that they were not interviewed. “We’ve seen in this whole situation, the current setup is not working very well.”

At the heart of the controversy is the conversation between Mr. Heastie’s executive counsel, Howard Vargas, and Ms. Garcia, whom Mr. Heastie appointed to the ethics commission in 2018.

Ms. Garcia was driving home on Jan. 29, less than two hours after the close of the commission’s monthly meeting, when Mr. Vargas texted her to ask if the meeting was over.

The two spoke on the phone shortly after. That was when Mr. Vargas told Ms. Garcia that the governor had suggested, in a conversation with the Assembly speaker, that she had voted against him during that meeting, Ms. Garcia said in an interview.

State law requires almost all of the commission’s votes to be kept secret, and Ms. Garcia declined to say what the vote was about or how she had voted. But JCOPE officials have disclosed separately that the meeting included a vote on whether to investigate Joseph Percoco, a former top aide and confidante to Mr. Cuomo who was convicted last year of soliciting and accepting bribes. (Mr. Cuomo has denied knowledge of Mr. Percoco’s actions, and prosecutors did not accuse him of wrongdoing.)

The phone call, and the notion of a leak, left Ms. Garcia reeling.

“Of course it was upsetting,” Ms. Garcia said. “I was taken aback.”

A spokesman for Mr. Heastie said last week that Mr. Vargas acted without instruction from the speaker. Mr. Heastie, through the spokesman, also offered condemnation of the action for the first time since the allegations became public last month.

“He does not think it was appropriate for his counsel to make this call,” the spokesman, Michael Whyland, said of Mr. Heastie, adding that the speaker had instructed a lawyer for the Assembly to “conduct a review in order to outline other steps that could be taken to address this matter.”

Mr. Vargas did not return a request for comment.

The day after the phone call, Ms. Garcia told JCOPE’s executive director at the time, Seth Agata, about the possible leak. Mr. Agata, as required by law, reported the allegation to the inspector general’s office.

The ensuing inquiry was not conducted by the chief inspector general, Letizia Tagliafierro, who previously served as executive director for JCOPE and also worked for Mr. Cuomo. Ms. Tagliafierro recused herself, and the inquiry was handled by a deputy.

In the following months, the probe seemed to leave holes.

Ms. Garcia gave a recorded interview under oath to the inspector general’s office in February. But the office did not request her phone records between herself and Mr. Vargas, Ms. Garcia said, nor the text messages, which The Times reviewed.

Mr. Cuomo and Mr. Heastie were never interviewed, spokesmen for the two leaders confirmed. Mr. Cuomo, at an unrelated news conference on Tuesday, defended the omission, suggesting that there was no reason for the inspector general to interview him.

“We’ve never had an inappropriate conversation about JCOPE,” the governor said, referring to himself and Mr. Heastie.

“Remember, legally, the only legal obligation is on the commissioners not to disclose,” he added. “If a commissioner called you or someone else and told you something, you could tell whoever you want. The I.G. talked to the people who have the legal obligation.”

But two commissioners — Mr. Lavine and George Weissman — told The Times that the inspector general’s office never interviewed them either. The remaining commissioners declined or did not return requests for comment.

Mr. Lavine was recused from the JCOPE matter discussed in the alleged leak, and was not privy to any related confidential information, the inspector general’s office said. But Mr. Weissman did participate in the January discussions.

“I expected the I.G. would do a thorough investigation,” Ms. Garcia said. “It appears I was wrong.”

Lee Park, a spokesman for the inspector general’s office, declined to say how many people were interviewed or how interview subjects were chosen. But in a letter laying out its investigative findings — which the inspector general released on Wednesday, only after several reporters requested it through freedom of information laws — the office said it had conducted “interviews, document review and analyses.”

Mr. Park also said that the office obtained 30 “signed affirmations under penalty of perjury” from JCOPE commissioners and staff members at the January meeting, who swore that they “did not disclose information regarding any matter discussed in the executive session.”

Ultimately, the inspector general’s letter said, “no individual was able to provide firsthand knowledge of any leak or potential perpetrator; and any information provided was admittedly based on supposition and speculation.”

Asked why the office did not interview Mr. Heastie or Mr. Cuomo, who might have had that firsthand knowledge, Mr. Park repeated Mr. Cuomo’s argument about legal liability lying only with commissioners.

The inspector general’s letter was sent to JCOPE commissioners in October. Four days later, Ms. Garcia sent a text message to Mr. Vargas — their first communication since the January phone call. “Resigning from JCOPE today. Where should I send the letter?” she wrote.

Mr. Vargas did not ask any questions, merely sending Ms. Garcia a fax number and his email address.

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